Advances to Girl Held Enough for Attempted Kidnapping

, New York Law Journal

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The majority found no problem with admitting testimony about Denson's earlier sex crime, concluding that the testimony was not used to establish a "propensity"—which would make it inadmissible—but to show that Denson had "transferred" his fixation on his stepdaughter to his new victim.

"Under the unusual circumstances of this case, the court properly exercised its discretion in receiving testimony regarding defendant's prior conviction of a sex crime committed against a child, as well as its underlying facts, on the issue of intent," the majority wrote.

Saxe, in the dissent, agreed that Denson's conviction for endangering the welfare of the child should be upheld, but said the conviction for attempted kidnapping should have been thrown out. He said that, in effect, Denson was being punished for being a convicted sex offender, not for anything he actually did.

"Even a convicted sexual predator like defendant—one who committed a sex crime against his young stepdaughter more than 20 years ago—is entitled to protection from an overcharged prosecution arising from accusations that defendant had begun to focus his attention on another young girl," Saxe said.

The prosecution, he said, failed to offer enough evidence that Denson intended to kidnap the girl.

"Rather, it relies primarily on what amounts to propensity evidence, essentially reasoning that based on defendant's prior act of molesting a child, we can expect that he would do it again," Saxe said. "The only valid inference that may be made from the facts adduced at trial, namely, that defendant had hoped to have the opportunity to sexually molest the complainant, is not sufficient to establish all the elements of an attempted kidnapping."

Rather than try to control the child in some way, Saxe said, Denson merely hoped that she would "cooperate with his delusional plans."

"There is reason to be concerned that his desires and delusions could ultimately lead him to actually engage in conduct amounting to kidnapping," he said. "However, the conduct demonstrated at trial falls short of an attempted kidnapping as the statute and the cases define it."

The majority, responding to the dissent, said that a child under 16 does not have to be forcibly restrained to be kidnapped. Kidnapping for of a child "encompasses movement or confinement by 'any means whatever,' including the acquiescence of the child," the majority said, quoting Penal Law §135.00[1][b].

"In relaxing the requirement with respect to minors, the Legislature recognized that a child is not possessed of the same faculties as an adult and is incapable of consenting to any type of confinement," it said.

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